Students and professors got a lesson in the anatomy of a Supreme Court
case March 30, as attorneys who worked on one of the most publicized
cases before the Court in years—Grutter v. Bollinger,
which upheld use of affirmative action in higher education admissions
decisions—dissected their strategic approach in arguing the case.
Latham & Watkins attorneys Maureen Mahoney and Scott Ballenger ’96
spoke at the event, which was sponsored by the Student
Legal Forum and the Center
for the Study of Race and Law.

“We never get tired of talking about this case,” said
Mahoney, who argued Grutter before the court and has won 11
of her 12 Supreme Court cases. Figuring out what strategies to follow
made for some “tough decisions along the way.”

The case was handled early on by another law firm, but Latham & Watkins
got involved after the University of Michigan won its case in the Sixth
Circuit Court of Appeals, and a trip to the Supreme Court appeared
eminent. By that time, the University wanted additional counsel, and
the resulting argument and brief emerged from the collective efforts
of Latham & Watkins, Wilmer Cutler Pickering, local counsel Butzel
Long, and the University of Michigan’s counsel’s office.

The first decision the team faced after the Sixth Circuit win was
whether to oppose certiorari—their opponents’ appeal to
have the case heard by the Supreme Court. Although the law school had
won in the Sixth Circuit, they didn’t receive the conservative
judges’ votes, portending a possible defeat in a sharply divided
Supreme Court.

“The risk of loss was just too high to concede that the court
should just take the case,” she said. Affirmative action programs
in higher education were still legal in the vast majority of states,
she added, and losing could have a devastating effect on schools. “It
was a risky proposition to say you’d win with that court.”

But others thought the case was strong on the facts. “There
was some feeling that this was the case to take [to the Supreme Court],” she
said.

Ultimately, the team decided to oppose cert, but in its petition asked
that if the Court takes the case, it should include the undergraduate
case as well—not because it would act as the sacrificial lamb
for winning the law school case, but “we wanted to win both cases.”

In determining their strategy, the attorneys considered competing
approaches. The NAACP Legal Defense and Educational Fund (LDF) attorneys
proposed an argument based on the idea that the 1978 Bakke decision,
which approved affirmative action but not quotas, was a defeat for
civil rights, as Ballenger, who worked on writing the Grutter brief,
explained. “We didn’t think that was in the limits of the
possible,” he said.

Some LDF arguments influenced their case, however. The LDF argued
that the LSAT uses too much “academic English” that minorities
don’t use at home. Ballenger pointed out that studies have also
shown what researchers called a “stereotype threat”—evidence
that minorities do worse in timed tests when they feel like they are
representing their race. The LDF also introduced evidence about institutional
racism in secondary schools, and problems with campus climates and
grading in college. Furthermore, the LDF noted that the lower LSAT
scores minorities register don’t correlate with success after
school, an argument the Latham attorneys did use.

The problem with the LDF’s overall argument, Ballenger said,
was that it could be misconstrued as suggesting all academic standards
be abandoned. It was important to Michigan to defend being academically
selective.

“The [NAACP] intervenors’ argument was giving away half
of what we wanted to win,” he said.

Ballenger played an audio clip of Mahoney’s argument to show
how the issue played out under Justice Antonin Scalia’s withering
questioning. Scalia argued that Michigan created its own problem of
being an elite law school, knowing the result would to a large degree
exclude minorities. He criticized calling racial diversity a “compelling
interest” in this context. Mahoney responded that nothing suggests
the law school has to choose between academic excellence and diversity.

Ballenger said Scalia seemed to suggest the issue was only really
a problem for elite public law schools, but Title VI—which
bans discrimination under federally assisted programs on grounds of
race, color, or national origin—also applies
to private schools that get federal funds or whose students get federal
loans.

Mahoney noted that only Justices Scalia and Clarence Thomas voted
against the idea of academic excellence and diversity as compelling
interests—Chief Justice William H. Rehnquist abstained on that
issue.

“Given that vote lineup . . . [on that threshold issue], it’s
just not likely to be undone anytime soon,” Mahoney said of the
court’s decision.

Another strategy the lawyers debated revolved around amicus briefs
and whether they were worth the effort. “It turned out to be
extremely valuable,” Mahoney said. They had planned to limit
the number of amicus briefs because their effect might be diluted in
greater numbers, but they failed on that count. Of the 103 amicus briefs,
many of which were sponsored by multiple organizations, about 90 supported
race-conscious programs. Supporters included Fortune 500 companies,
the Ivy League, educational associations, and importantly, one brief
from high-ranking military leaders, including retired Gen. Norman Schwarzkopf.
In that brief, the leaders argued race-conscious programs were necessary
for a diverse officer corps.

“These briefs just don’t happen,” she said of the
key brief. “We didn’t write the brief, but we did make
sure it got done.”

Mahoney said the briefs were clearly influential; Justice John Paul
Stevens has since said the power of the briefs could not be ignored,
and said he based his decision on the idea that the issue should be
left to the democratic process. Justice Stephen
Breyer made similar remarks at the Law School in February. During
argument, Justice Ruth Bader Ginsburg quizzed the U.S. solicitor general
about his contention that race-neutral programs could be used, when
all the military academies currently have race-conscious programs.

In forming their strategy, the attorneys also discussed what limiting
principle they could find to get enough justices to sign onto the idea
of race-conscious programs. Ballenger said he wondered whether he could
make anything out of Shaw v. Reno (1993), in which Justice
Sandra Day O’Connor said consideration of race in districting
does not necessarily trigger strict scrutiny—it would only be
triggered if race were the predominant factor in drawing district lines.
Ballenger said they weren’t sure whether a predominance test
would supply enough of a limiting principle to satisfy the court. It
also was unclear what using this standard would mean in the admissions
context. Ultimately, they used some of Shaw’s rhetoric
in their case, but within the context of strict scrutiny. “Some
of that language did make its way into various opinions of the Court,” he
said.

They also examined cases in the academic world, like Bakke,
to consider what role academic autonomy plays, but were concerned that
the court would think they were asking for a bye for academic institutions. “Frankly,
it just seemed like too big of a risk,” he said.

The attorneys wanted to acknowledge the need for limits on race-conscious
programs; for example, they didn’t want to argue for a rigid
quota. The need for diversity seemed more apparent in law schools at
first than in undergraduate institutions. “A law school can’t
grapple [with issues affected by race] with an all-white student body,” he
said. If you’re studying math at an undergraduate university,
it’s a more difficult case, although you can argue that the school’s
residential setting is an education in citizenship, and thus race would
be an important factor.

Another ripple in court cases was that race-conscious programs should
not impose an excessive burden on non-minority applicants. To address
that issue, their brief analyzed how many admissions decisions were
really changed by consideration of race.

“It tops out at about 2 percent of overall admissions decisions
made,” he said. Test score gaps are misleading, he added. If
a school institutes a race-neutral system of admitting all applicants
who have LSAT scores above 167, there is still a gap between races.

Justice O’Connor made it clear in earlier decisions that the
court was never going to approve a compelling interest that was unlimited
in duration, Ballenger said, so in the end they contended that “once
[minorities] just get a little bit closer [to white test scores], it
will be possible to pull together all kinds of race-neutral alternatives.”

Mahoney said before the Court that the need for such programs would
dissolve if minorities’ academic achievement levels out with
whites, or if society reaches a point where race didn’t make
such a difference in Americans’ lives.

Scalia’s repeated questions about quotas “turned out not
to be such a big deal,” Mahoney said. The school acknowledges
it had a flexible goal of how many minorities should be admitted, and
from 1993-2000 the law school’s yearly enrollment ranged from
42 to 73. Ultimately only Justice Kennedy said the system was a quota. “Even
if it sounds technical, we were right about the definition of a quota,” she
said.

Their opponents reduced the complexity of the admissions data to three
variables—GPAs, LSAT scores, and race. The law school’s
response was to show that the actual GPA difference was that between
an A- and a B+, and an LSAT differential of 7 to 9 points. They noted
that some whites were accepted with lower scores than minorities who
were rejected.

Mahoney added that there was no evidence to indicate that blacks were
stigmatized by being viewed as the recipients of affirmative action,
adding that minorities go on and succeed in ways that are indistinguishable
to whites.

In response to a question, Mahoney said she did attack race-neutral
alternatives, like the Texas plan that allows the top 10 percent of
high school students into the University of Texas. “We did in
fact mess with Texas,” she joked. “We decided in order
to win we had to.” The plan doesn’t make sense, she said,
and sends some kids from poor schools unprepared to college, while
the next five percent in top schools aren’t admitted. “I
think the court understood that.”

Ballenger added that the plan is unexplainable under any grounds except
to create racial diversity, so it violates previous Court decisions
itself.

If the Court thought there was an alternative, Mahoney explained,
they would lose. In their favor, powerful data showed you could not
get meaningful numbers of minorities into elite schools without taking
race into account. For example, in the 2000 national applicant pool,
3,100 had a 3.5 GPA and 165 LSAT score or higher, but only 26 African-Americans
met the same standard. “ Michigan couldn’t get them all,” she
said. “The school wanted more than a handful.”

Asked about the importance of Justice O’Connor’s vote,
Mahoney noted that “she does tend to like Justice Powell’s
jurisprudence.” Powell wrote Bakke’s majority
opinion.

To prepare for her oral argument, Mahoney said she participated in
three moot courts, one with members of the Michigan law faculty, which
she called a highlight of her career. She said it’s most important
to discipline yourself about how to anticipate questions and “really
memorize the record facts so you’ve got them on the tip of your
tongue.”

Both Ballenger and Mahoney had experience with conservative jurisprudence;
Ballenger had clerked for Justice Scalia and Mahoney for Chief William
H. Justice Rehnquist. Mahoney said it may have helped her think like
a conservative; other lawyers might have had grander visions of the
equal protection clause.

Asked about whether oral arguments or briefs were more important to
the Court, Ballenger said nine times as many cases are lost in argument
as won, and justices often use oral argument to trip up attorneys. “It’s
much more likely that you’re dancing among minefields that have
been laid than arguing the case [in oral argument],” he said.• Reported by M. Wood